Yesterday the United States Department of Commerce released a whitepaper on remixes, first sale, and statutory damages. While this is interesting reading for anyone who likes thinking about copyright law and how it might be reformed (i.e. every man, woman, and child on the planet), two of the areas that it covers may be especially interesting to the Shapeways community: remixes and statutory damages. Read on to find out why – if you get to the end and you aren’t convinced I’ll refund you the cost of this blog post.
While not every model on Shapeways is protected by copyright, many of them are. That means that the rules for copyright also end up being the rules for models on Shapeways. This latest report is part of a long process of reviewing the U.S. copyright law that has involved Congress, the Administration, and the Copyright Office itself. While it will not change the law on its own, this report is a good description of the current state of play and will likely influence any eventual changes that Congress makes to the law in the future. You can think of it as capturing a moment in the evolving consensus (or at least evolving conventional wisdom) of what “reasonable” copyright reform looks like. (If you are feeling especially wonky, you might think of it as helping to set the Overton window for the debate – but that’s a bit of a digression. Anyway….)
The first issue that the report addresses is how to handle remixes. Essentially, remixes take existing works to reimagine, recontextualize, and, yes, remix them into something fresh and new. They can take many forms, from fan fiction to mashup videos to songs built out of samples. 3D printed remixes can take two characters from a movie and mash them up into one, or reimagine a video game character in the style of another game, or even stir up a collection of memes to turn them into a super-meme.
While remix is everywhere, its status within the world of copyright law can be complicated. Some remixes require permission from the remix sources in order to comply with the law. Others are protected by fair use and do not need permission. Since copyright infringement can come with hefty penalties (more on that in a second), it is important for remix creators to know which category their work falls into. Unfortunately, that isn’t always a straightforward process.
The report describes two different types of disagreement about how to handle remixes. The first is probably the expected disagreement: between people who make remixes and people who make the things that get turned into remixes (obviously the same person can be in both camps, but for the purpose of this post it is easier to separate them out).
The other type of disagreement may be less expected: this disagreement is between people who are involved with remix commercially and people who are involved with remix noncommercially. To oversimplify things, people who are involved with remix non-commercially basically want to be left alone. People who control the material that is used in both commercial and non-commercial remixes worry that leaving non-commercial remixers alone will create a loophole for commercial remixers to avoid paying licensing fees. The result is a mess.
The report does not do a lot to help resolve either of these disagreements. It suggests that best practice guides can be useful, but also recognizes that they can be incomplete or imperfect. It also considers some sort of multi-stakeholder agreement on some rules, while at the same time noting that the last time such a thing was attempted it went nowhere.
This lack of a clear resolution is unfortunate because it can be expensive if you are wrong about needing permission from the sources to make your remix. In large part that is because of the way copyright damages work.
Don’t be put off by the fancy name. “Statutory damages” just means that the dollar amount you have to pay for infringing on copyright is written into the law. This is in contrast to most other types of damage, where the person suing has to show how much harm they were caused before they can recover damages.
The statutory damage system is good for the person doing the suing because they do not have to figure out a way to calculate their specific losses. It can be scary for the person being sued because the number (even though it is a range) can be quite large – into the six figures per work infringed.
When the U.S. copyright law was last redone in 1976, most copyright infringers were going to be commercial-scale criminal enterprises. Very few people inadvertently backed into significant copyright infringement. Today it really is possible to expose yourself to hundreds of thousands of dollars’ worth of infringement liability with a few casual clicks of the mouse.
Fortunately, the report actually contains some recommendations to make this system better. Essentially, the recommendations would give courts more leeway to consider the circumstances of the infringement before assigning large penalties to the infringer. Hopefully that would make it less likely that small scale infringers or people who made a wrong guess about fair use end up owing hundreds of thousands of dollars.
As I said at the beginning, this report is part of a longer review of U.S. copyright law. We’ll keep an eye on the parts that may impact the Shapeways community and keep you updated as things happen. If you are interested in either of these topics, I would recommend taking a look at the report itself. It is written in accessible prose and each section provides background on the issue, the points raised by both sides, and an explanation as to why the Task Force recommended what it did.
As you look at the section describing the points raised by both sides, you might also consider taking a look at which companies and organizations raised points you agree with or disagree with. These companies and organizations are the ones that are participating directly in this process and might be worth checking out.
In the meantime, Matt Schruers over at Project Disco has a quick writeup of some takeaways of the report generally. Heidi Tandy – who is affiliated with the Organization for Transformative Works – also has an analysis of what this means especially from the perspective of remixers at her FYeahCopyright blog. If you have gotten this far and are itching for your refund, the gift of the links to those two posts may scratch it for you.
Have you ever tried to make a remix or has your work ever been remixed by someone else? Did copyright concerns have any impact on how you thought about it? Have you ever had to sue someone for copyright infringement, or been sued yourself? If so, did statutory damages make that process better or worse? Let me know in the comments, on twitter @MWeinberg2D, or via email at firstname.lastname@example.org.